Rodrigo's Thirteenth Chronicle: legal formalism and law's discontents.

• Author: Delgado, Richard
• Position: Symposium: Representing Race

Introduction: In Which the Professor Returns to the U.S. and Gets Caught up on What His Two Young Friends Have Been Doing

"Professor! You're back!" Rodrigo leaped to his feet and shook my hand fervently.(1) "I heard a rumor you might be Coming. What good news! Sit down. Did the authorities give you any trouble?"

"Not at all," I replied, choosing one of the few uncluttered spots on my young friend's couch. "I breezed right across. They didn't even make me open my suitcase.(2) I gather you didn't get my letter."

"No, but Laz got a card and mentioned it to Giannina.(3) So we were hoping against hope that we'd hear from you."

"You'll probably get my letter next month. The mail is glacially slow. It's one of the few things that takes a little getting used to about my new home. I'm glad you're both in town."

"It's been a while," Rodrigo said. "How's the grandchild?"

"She and her mother are fine. They named her Gianna, after your Giannina, I suspect."

"We hoped the lure of grandchildren would bring you back. How long can you stay?"

"My visa's good for six months. But I'm thinking of heading back the week after next. I'm helping my son-in-law lay tile for their new patio, so that my daughter and the baby can go outside when the weather's good." I looked at a pile of papers and reports on Rodrigo's desk with yellow slips of paper sticking out. "What are you working on?"

"Oh, that stuff," Rodrigo said, looking down. "I'm on the curriculum committee. Laz is the chair. The dean asked us to decide what, if anything, the law school should do in response to these reports. Are you familiar with this one, Professor?" Rodrigo asked, holding up one of the volumes.

I half stood up and peered at the thick paperbound volume Rodrigo was holding up for my benefit. "That must be the Mac-Crate Report.(4) It came out just as I was leaving. It caused quite a stir. As I recall, it argued that legal education should be more practical. A number of my friends applauded it. Others damned it because they thought it threatened transformative scholarship and teaching."

"And had you seen this other one?" Rodrigo asked. I leaned forward again. "Oh, that's Judge Harry Edwards' article.(5) He sent me a reprint, which got forwarded to my new place. Boy, has he changed. Did you know that we knew each other?"

"No, I didn't. But it stands to reason," Rodrigo replied. "You're of the same generation. So you know he leveled quite a blast at law review scholarship, charging that a high proportion of it has little to do with law and judging."

"I don't know what got into him. He was quite a scholar before he was on the bench. Maybe I'll write him sometime. But you mentioned that there was something else?"

"Yes. The Carrington article.(6) We discussed it one time before. It accuses CLS scholars-and, by implication, others, such as critical race theorists, feminists, and interdisciplinary writers -- of nihilism and invites them to leave the academy."

"I remember. He said their message was counteraspirational and went against the central ethos of the law. People who write in that vein, he said, have no business teaching law students. They should either move over to other departments or leave the academy entirely.(7) And so your dean asked you to look at all three?"

"She did. We're supposed to report on the implications they bode for the way we teach and write. Her memo came with a sheaf of news clippings about the public's discontent with law and lawyers."(8)

"Some of that was building when I left. The major newsmagazines have been covering it, even in their international editions, which are the only ones we get down there. But it's not just the public. Lawyers seem disenchanted with law practice as well. Some are leaving. Others are thinking of doing so."(9)

"She asked us to look into all that. Can I offer you a cup of coffee? Giannina will be here soon. Can you join us for dinner?"

"I'd love to," I said. "If it wouldn't be too much trouble."

"Not at all," Rodrigo replied. "Did I tell you that Giannina is in law school now?"(10)

"I had no idea! How does she like it? Where is she going? I hope she hasn't given up her writing," I said.

"By no means. She says the first year is so weird she writes for relief. She's finished half a book of poems and most of a play that she refuses to let me see. I think it's about law school, and I'm probably a character in it."

"Uh-oh," I said. "Reminds me of the time my daughter wrote a crime mystery for a high school English class. It was so realistic the teacher called home. My late wife and I had to do a lot of talking to persuade the teacher we weren't running some sort of crime ring out of our home!"

Rodrigo laughed. "She's going to the school across town. She got high test scores and could have gone anywhere. But we've had it with living apart."

"I'm glad you decided to stay together. I remember how hard commuting was on the two of you that first year of teaching.(11) But tell me your thoughts on these three critiques. I assume you have a theory."

"I do. Oh, the coffee's ready." Rodrigo busied himself for a moment at his office espresso machine, then handed me a steaming mug. "It's Italian blend. Your favorite, if I recall. And I have cream and sugar right here."

"Just like the old days," I said.

1. In Which Rodrigo and the Professor Review Laws Laments

   As I mixed the condiments into my coffee, Rodrigo began:

   "You asked if I had a theory, Professor. I do. As you know, the two dominant currents in legal education today are, first, the MacCrate-Edwards critique of legal education and scholarship as not being practical enough,(12) and second, deep discontent with law and lawyers, both on the part of the public and of lawyers themselves. My thesis is that these two are related, although not at all in the way or in the direction most people think. And the connecting link is legal formalism."(13)

   "Legal formalism?" I said. "You mean teaching and scholarship that emphasize cases and doctrine over policy, critique, and interdisciplinary approaches? The Langdellian idea that law is a science with only one right answer?"

   Rodrigo nodded animatedly, whether in response to my answer or to his own double-size mug of coffee, which he was rapidly draining, I could not tell. In any event, I went on: "So are you saying we need more formalistic classroom teaching and more boring, doctrinal scholarship? I certainly hope that is not where you are going."

   "Quite the contrary, Professor. Those things are precisely what are causing all the trouble."

   "That's a relief," I replied. "But I hope you can spell out the connection, for you are definitely swimming against the tide. In fact, you are saying the opposite of what the ABA report and my old friend Harry Edwards are saying."

   "I'll be happy to," Rodrigo replied. "But first consider what the public is saying about lawyers, and also what lawyers are saying about themselves and their profession."

   "I'm all ears," I said. "I haven't practiced in quite a while, as you know. But I've always done a little consulting, mostly in school desegregation cases. So I'm vitally interested in what you're going to say."

   1. In Which Rodrigo and the Professor Analyze the Public's Disenchantment with Law and Lawyers

      "Let's take the public's attitudes first," Rodrigo began. "If you'll just give me a minute." Rodrigo, who I knew from past experience was well versed in the new technology,(14) pushed a few buttons on his computer keyboard. "Where did I find that poll file? Oh, here it is. Where were we?"

      "Public attitudes toward lawyers."

      "Right," Rodrigo said, looking down at his desk. "These clippings from the dean turned out to be only the tip of the iceberg. I bet you've seen this one, at least."

      I peered at what he was holding up for my benefit. "Yes, it's the ABA president saying that the profession isn't as bad as it's made out to be."(15)

      "The public doesn't trust us. Many think we are ambulance chasers who feast off the misfortunes of others. We are more interested in money than justice, prolonging suits in order to drive up our fees. A Gallup Poll -- if I can find it, oh, here it is -- rated lawyers below druggists, clergypersons, doctors, dentists, and college teachers for honesty and ethical standards. We ended up toward the bottom, not much above professional admen and used car salespersons.(16) In another survey of confidence in institutions, law firms rated dead last, behind every branch of government, the military, major companies, Wall Street, the press, colleges and universities, the medical profession, and TV news.(17) Yet another poll found that fifty-six percent of the public believed lawyers tend to recommend more legal work than necessary because it increases their fees.(18) Seventy-three percent said there are too many lawyers and that the glut causes disputes to be taken to court when they shouldn't be."(19)

      "Sounds dismal," I said. "But, of course, you can prove almost anything with statistics. The very way a polltaker frames a question largely shapes the answer.(20) Maybe the public associates lawyers with trouble -- with divorces, drunk driving tickets, and other hassles. Maybe it's a case of shooting the messenger."

      "If so, they certainly think ill of the messenger," Rodrigo replied. "Another survey -- this one by the ABA -- showed that the public views lawyers as being of uneven character and quality.(21) And a second reflects the perception that lawyers are deficient in compassion, caring, ethics, and honesty.(22) We are motivated by money and engaged in undignified advertising.(23) Lawyer-bashing jokes are legion."(24)

      I winced. "Even I've heard those from time to time. I'm a law professor, but a certain type of person makes it their business to let me know at parties what they think of lawyers, as though I were some sort of media-hungry, ambulance-chasing personal injury shark."

      "The same happens to me. I tell them I'm an Italian lawyer, which I am. That usually shuts them up...